Citation Nr: 0411513
Decision Date: 05/03/04 Archive Date: 05/14/04
DOCKET NO. 03-23 872 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of death.
ATTORNEY FOR THE BOARD
C. P. Shonk, Associate Counsel
INTRODUCTION
The appellant's spouse served in the Philippine Commonwealth
Army as a recognized guerilla from March to August 1945 and
died in March 1990.
This matter comes to the Board of Veterans' Appeals (Board)
from a May 2002 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Manila, the Republic of
the Philippines, which denied service connection for the
cause of death.
FINDINGS OF FACT
1. According to the certificate of death, the appellant's
spouse died in March 1990 from pulmonary tuberculosis (PTB).
2. Service connection was not in effect for any disability
during the appellant's spouse's lifetime.
3. The record contains no indication that the appellant's
spouse's death was proximately due to or the result of a
service-connected disease or injury.
CONCLUSION OF LAW
A service-connected disability did not cause or contribute
substantially or materially to cause death, nor may it be so
presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Before assessing the merits of the appeal, the Board examines
VA's duties under the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2003), for the pending case.
First, VA has a duty to notify the appellant of any
information and evidence needed to substantiate and complete
her claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. §
3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002). Additionally, VA must indicate which portion of
that information should be provided by the claimant, and
which portion VA will try to obtain on the claimant's behalf.
The February 2002 VCAA notice provided to the appellant
fulfilled these strictures.
Additionally, the United States Court of Appeals for Veteran
Claims' decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held that a VCAA notice, as required by 38 U.S.C.A. §
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, the RO issued the
February 2002 VCAA notice prior to the May 2002 rating
decision.
Moreover, the RO generally advised the appellant to submit
any evidence in support of her claim, which she had in her
possession, and that they would assist her in obtaining any
evidence she was not able to obtain on her own. Pelegrini,
17 Vet. App. at 422; but see VAOGCPREC 1-2004 (Feb. 24,
2004).
Next, the VCAA requires VA to assist the claimant in
obtaining evidence necessary to substantiate a claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2003).
The record includes service medical records, a report from
the Veterans Memorial Medical Center of the Philippine
Veterans Affairs Office, and a statement concerning the cause
of the death from a private physician, Dr. Antonio.
Under VCAA, the duty to assist also includes obtaining a
medical opinion when such is necessary to make a decision on
the claim. An opinion is necessary if the record: (a)
contains competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of
disability; (b) establishes that the veteran suffered an
event, injury or disease in service; and (c) indicates that
the claimed disability or symptoms may be associated with the
established event, injury, or disease in service or with
another service-connected disability. See 38 C.F.R.
§ 3.159(c)(4) (2003). The requirements set forth in
paragraph (c) could be satisfied by competent evidence
showing post-service treatment for a condition or other
possible association with military service.
In this case, the record fails to establish that the
appellant's spouse suffered "an event, injury or disease in
service" as it relates to the cause of his death. Under
these circumstances, any opinion on whether a disability is
linked to service would be speculative. Thus, the Board
finds that a VA medical opinion is not necessary to make a
decision on the appellant's claim.
For all the foregoing reasons, the Board concludes that VA's
duties to the appellant have been fulfilled.
I. Facts
The service entrance examination indicates that his lungs,
including x-rays, were normal. The medical records from the
Veterans Memorial Medical Center show that the appellant's
spouse commenced treatment there for PTB in 1986, and
continued to receive intermittent treatment until his death
in 1990.
Dr. Antonio, a private physician, certified that the
appellant's spouse died of PTB. In a statement dated in
March 2002, Dr. Antonio based the cause of the death on the
following symptoms: non-productive cough of longtime
duration, fever and chilly sensation every afternoon, and
loss of appetite and weight.
A lay statement, dated in March 2002, related that the
appellant's spouse had been maltreated during wartime. The
statement did not detail the maltreatment, nor did the
attestor describe who he was in relation to the appellant's
spouse.
The appellant contends that there is a causal connection
between the veteran's death and his military service because
during her spouse's service, due to weakened resistance, he
likely contracted PTB. She argued that although the disease
did not manifest for years, that should not exclude the
possibility that her spouse contracted PTB in service.
II. Laws and Regulations
To establish service connection for the cause of the
veteran's death, the evidence must show that disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. 38
U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2003). For a
service-connected disability to be the cause of death, it
must singly or with some other condition be the immediate or
underlying cause, or be etiologically related. For a
service-connected disability to constitute a contributory
cause, it is not sufficient to show that it casually shared
in producing death, but rather it must be shown that there
was a causal connection. Id.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. §§ 3.303, 3.306 (2003).
Where a veteran served 90 days or more during a period of war
and the chronic disease of PTB becomes manifest to a degree
of 10 percent within three years from date of termination of
such service, such disease shall be presumed to have been
incurred in service even though there is no evidence of such
disease during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3),
3.309. A diagnosis, however, of active pulmonary
tuberculosis by a private physician on the basis of an
examination, observation, or treatment will not be accepted
to show the disease was initially manifested after discharge
from active service unless confirmed by acceptable clinical,
X-ray, or laboratory studies, or by findings of active
tuberculosis based on acceptable hospital observation or
treatment. 38 C.F.R. § 3.374(c) (2003).
Under applicable criteria, VA shall consider all lay and
medical evidence of record in a case with respect to benefits
under laws administered by VA. When there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary
shall give the benefit of the doubt to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); see Gilbert v. Derwinski,
1 Vet. App. 49, 55 (1990) (a claimant need only demonstrate
that there is an "approximate balance of positive and
negative evidence" in order to prevail).
III. Analysis
Although the Board understands that the appellant's spouse
served as a recognized guerilla, VA cannot give death
benefits to a surviving spouse when the cause of death is not
connected to a disability that the appellant's spouse
incurred during the time he served as a guerilla.
The Board determines that service connection for the cause of
death is not warranted because none of the probative evidence
establishes that the veteran's PTB was related to service or
any incident therein, nor may it be so presumed.
The Board observes that the veteran had no service-connected
disability during his lifetime. The record shows that there
is no indication of PTB during the veteran's service. There
is no indication that the veteran's PTB manifested within
three years of discharge from service via acceptable
clinical, X-ray, or laboratory studies confirming the
presence of active PTB. Rather, medical records on file
identify that the veteran started receiving treatment for PTB
in 1986. The record lacks evidence of a causal relationship
between the PTB and active service.
Thus, the Board finds that the preponderance of the evidence
is against the claim of service connection. As the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is inapplicable. See Gilbert,
1 Vet. App. at 55.
ORDER
Entitlement to service connection for the cause of the
appellant's spouse's death is denied.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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